Venereal disease as a ground for divorce

The Supreme Court has in a case held that

“Either husband or wife can get a divorce, or a person who has suffered from the disease cannot be said to have any right to marry even before marriage, as long as he is not completely cured of the disease”[1]

Venereal disease is an infection that is transmitted through sexual intercourse. Under the Hindu marriage act, there are several grounds listed for the spouses to get relief. It is essential for every spouse to know their rights and essential duties and how a divorce suit can be initiated. Few steps have to be taken while considering divorce and under what ground one can file the petition.

One among the ground is the sexually transmitted disease (STD) which is also called venereal disease. It is a common ground for divorce in India under the personal laws of Hindus. If any one of the spouses has been suffering from venereal disease in a communicable form then a divorce can be granted to the other spouse. The disease must specifically be in a communicable form.

A spouse can approach the court under the providential fault ground and get her/his marriage dissolved. In this case, the respondent should have been suffering from some virulent venereal disease for not less than two years. The disease should be not curable and to obtain the decree of divorce the petitioner had to show that such disease had been afflicting the respondent for at least three years preceding the filing of the petition and should also prove that the disease has not been contracted from the petitioner. This rule also applies to the husbands, that is when the wife has been suffering from any kind of communicable disease like HIV or AIDS, the husband can seek divorce under the same ground. This leads to the end where all kinds of marital obligations concerning the husband and wife will be over.

Factors to be considered

It is said that if the disease is curable with relevant medications, then the spouse cannot use this ground to apply for divorce. Therefore, these kinds of diseases are curable and not all diseases are endangering life. It is claimed that common STDs like Chlamydia, Syphilis, Gonorrhea, Crabs and Trichomoniasis, are mostly curable with the assistance of antibiotics and antiviral medications. If this factor is taken into consideration, it would avoid a lot of divorces. This will also contribute to protect the institution of marriage. Therefore it is very important to note that venereal diseases are also curable. Therefore, sufficient time can be given to the patient-spouse to rethink the decision of divorce while the treatment takes place. In few other cases, the time taken for treatment and time to get completely cured can be indefinitely long. In those cases, a statutory limit can be set based on the intensity and the condition of the parties. This process is to protect the innocent spouse left behind with no option. Other related factors like Alimony, maintenance and custody of children will be considered according to the veracity of the case.

Various types of STDs are not curable. Human papillomavirus (HPV), Human Immunodeficiency Virus (HIV) & Herps Simplex Virus (HSV). HPV can even lead to serious types of cancer which includes genital, cervical or oral cancer, HIV to AIDS. Practically, it will not be possible for a patient spouse to fulfil his marital obligations or for the innocent spouse to live a normal conjugal life. Thus, the question regarding the logical basis for the innocent spouse to get a divorce and to get his or her marriage dissolved when the other spouse has been suffering from an incurable STD is very important. In these circumstances, such diseases cannot be cured even after a long waiting period and hence this would lead to unwanted mental agony, depression resulting in losing his or her liberty to live. Hence, in these kinds of cases of incurable venereal diseases, the period should not be so long that it deprives the right of the innocent spouse. Therefore, special attention should be given and few factors should be considered as a quintessential factor in ensuring the removal of baseless delay in furtherance of the freedom of innocent spouses from the unsustainable matrimonial bond. 

Few landmark judgments regarding the jurisprudence of divorce have got attention globally. One such case law under the purposes of divorce law is to punish the guilty spouse and to protect the innocent one. Protection of the innocent spouse was given first importance than the punishment of the spouse at fault, especially in the matters of providential faults.[2]

In this case, Justice Leila Seth has stated the basic ingredients of a happy and harmonious marriage. A healthy sexual relationship is one of the basic ingredients of any marriage and when a spouse is suffering from any STD, there cannot be intercourse. It is medically advised not to involve in any kind of sexual intercourse to prevent the transmission of the disease. In that case, an innocent spouse can’t survive in that marriage and enjoy the normal course of the conjugal life. Hence, it is considered to be a blatant injustice to the innocent spouse to disallow to seek divorce on the ground that the “respondent is suffering from incurable venereal disease”[3].

GROUND FOR DIVORCE

The most important element in sexually transmitted disease was done in 1976 amendment grounds for divorce. It was done under the Hindu marriage act, 1955 where venereal disease in communicable form should be ground for judicial separation and divorce. Before, it has to be proved that the disease was not transmitted to the respondent by the activity of the wife spouse. After few years, the laws have changed where the question as to whether or not the petitioner had communicated the disease to the respondent is now immaterial. The court has held that Venereal disease that is communicable is a cause of divorce, but the partner may be denied relief even though the other partner suffers as much if the former is responsible for the contagion. [4]

The time duration has also been removed by the 1976 amendment to save the other spouse from the incurable disease which is completely dangerous to the life of the other spouse. Our lawmakers have taken and are taking immense measures continuously to prevent the victims and make amendments according to the change in society, the mindset of people and with regards to other public concerns. 

Originally, in modern India, divorce was mainly based on fault theory. Venereal disease is stated in section 13(v) of the Hindu Marriage Act, 1955. It is a communicable infection transmitted through sexual intercourse. HIV positive is also a similar disease transmitted through sex. In the year 1955 when the act was brought into force, HIV was unknown and therefore, that was not named in the Act, as one of the grounds. But the venereal disease is a communicable form of the disease that has been mentioned as one of the grounds for divorce and any other form of the disease that is related to venereal disease in a communicable form, will also fall under the provision of section 13(v) of the Hindu Marriage Act and therefore, it cannot be contended that a petition cannot be filed on the ground that HIV positive is not included in section 13(v) and therefore, divorce cannot be granted[5].

As mentioned above, both HIV and venereal diseases are communicable. Even though the HIV- positive condition is not mentioned under the act as one of the grounds for divorce, it is as serious as the venereal disease and falls under its ambit. Thereafter, any spouse who suffers from these communicable diseases can very well seek the courtroom for his/her rights. Activities which include visits to brothels, birth of a child when there is no access, confessions etc are not only a ground for contracting a venereal disease but also a ground for adultery.

Considering the nature of the marriage and counting the intensity of the relationship between husband and wife, the Act permits divorce if the petitioner proves the existence of this disease for three years before filing the suit. This time gap has been criticized by few lawmakers that it is lengthy and after knowing the affected position of the spouse, it is hard to survive for so long. This type of divorce is obtained by contesting the case and proving that the disease will affect the life of the innocent spouse. There must be an amendment to the respective legislations where all divorces should include this “Venereal disease” as a ground for divorce and make it a uniform rule regarding the period, curability factors and other related issues of the disease.

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[1] Mr X v. Hospital Z AIR 2003 SC 664

[2] Collins V Gollins and William V William

[3] Shakuntla Kumari vs Om Prakash Ghai AIR 1983 Delhi 53, 19 (1981) DLT 64

[4] Sm. Mita Gupta vs Prabir Kumar Gupta AIR 1989 Cal 248

[5] P.Ravikumar : vs Malarvizhi @ S.Kokila : on 15 April, 2013